Constitutional horror: Clarence Thomas argues states can establish official religion

iBlazed

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This article is from May, but I haven't seen it mentioned. I think it's horrific that a Supreme Court Justice can hold such blatantly unconstitutional views and still be on the bench. Very dangerous.

Supreme Court Justice Clarence Thomas argues states may establish an official state religion, and sees no problem with an individual state making Christianity the official state religion.
Thomas believes the First Amendment’s Establishment Clause does not apply to the states. The Establishment Clause is that part of the First Amendment that says “Congress shall make no law respecting an establishment of religion.”
The Establishment Clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another, or none.
While Thomas believes that the Establishment Clause “probably” prohibits the federal government from establishing an official, national religion, he sees no problem with individual state establishing an official state religion.
In the recent, disastrous Supreme Court ruling that found Christian prayers used to open government meetings to be constitutional, Thomas went further than his other conservative colleagues in condoning sectarian prayers at government functions. In his dissenting opinion Thomas disputes the widely accepted notion that the First Amendment’s ban on the “establishment” of religion even applies to state and local governments.
MSNBC summarizes Thomas’ official opinion:
“If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment.”
Link
 

SLC Flyfishing

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Can you argue with the logic? Where in the constitution are states banned from having an official religion?

That's not an endorsement of his stance though...
 

bradl

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Can you argue with the logic? Where in the constitution are states banned from having an official religion?

That's not an endorsement of his stance though...
They could try to define one, but would be rendered moot by Article 4, Section 1, plus would be prevented from being able to retroactively set one, per Article 1, section 10.

So in short, they couldn't join with another state in their quest to establish another religion, as they still must honour all other states...

.. Plus if they did try, their rules would come under congressional control, which Congress won't pass it, per the 1st Amendment.

So Thomas is completely wrong here.

BL.
 

Michael Goff

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Can you argue with the logic? Where in the constitution are states banned from having an official religion?

That's not an endorsement of his stance though...
Common sense is the best argument against it. Most of the amendments don't mention the word state in them. If we go down this road, then a lot of amendments are going to apply to only whatever states want them.

Oh crap, how long before the Governor of Utah declares LDS the state religion?
Any day now... or at least he'll try.
 

Southern Dad

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Won't happen. LDS are very against this sort of thing. It's right in our articles of faith.
I agree but when I lived in Utah (back in the day) convenient stores didn't display cigarettes, there were no coffee cups on the tables in restaurants... You had to ask for it. Back then it was pretty much the unofficial religion.
 

SLC Flyfishing

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I agree but when I lived in Utah (back in the day) convenient stores didn't display cigarettes, there were no coffee cups on the tables in restaurants... You had to ask for it. Back then it was pretty much the unofficial religion.
When the vast majority are of one group, the cultural norms tend to reflect those of that group.

There are quirky things about Georgia that don't occur in other states or regions I'm sure as well.

When and where did you live in Utah?
 

Michael Goff

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Not to derail the topic, but I would love to live in Utah. I really don't know why anyone would leave. I may not be a Mormon anymore, but they're some of the nicest religious people I have ever met overall. Then again, I mostly get to deal with baptists...
 

Gutwrench

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They could try to define one, but would be rendered moot by Article 4, Section 1...

So in short, they couldn't join with another state in their quest to establish another religion, as they still must honour all other states...

So Thomas is completely wrong here.

BL.
I'm no Internet legal scholar, but I'm not following your thought in either paragraph 1 or 2.
 

Southern Dad

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In Georgia we have two major religions. The Southern Baptists and the United Methodists. The Baptists start their service at 11:00 and the Methodists at 10:45... That's so that Methodists can get a jump on the good restaurants.

I've lived in Utah three times in my lifetime. 1978 - 1980, I lived on DPG for several months out of each year. Beautiful housing area. We had a six bedroom house. Then in the early 1990's I was TDY at TEAD for five months and then stationed there for a year. The last time I lived in Murray. (900 E 5500 S)

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Not to derail the topic, but I would love to live in Utah. I really don't know why anyone would leave. I may not be a Mormon anymore, but they're some of the nicest religious people I have ever met overall. Then again, I mostly get to deal with baptists...
I agree that it was nice to live among the LDS.
 

SLC Flyfishing

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Not to derail the topic, but I would love to live in Utah. I really don't know why anyone would leave. I may not be a Mormon anymore, but they're some of the nicest religious people I have ever met overall. Then again, I mostly get to deal with baptists...
Yeah, despite the bad press after prop8 we're pretty tolerant and welcoming people.

Our state (Utah) was light green in the "tight vs loose" thread.
 

thekev

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In Georgia we have two major religions. The Southern Baptists and the United Methodists. The Baptists start their service at 11:00 and the Methodists at 10:45... That's so that Methodists can get a jump on the good restaurants.
That is extremely funny.
 

G51989

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Feb 25, 2012
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This article is from May, but I haven't seen it mentioned. I think it's horrific that a Supreme Court Justice can hold such blatantly unconstitutional views and still be on the bench. Very dangerous.



Link
Why is this guy on the bench?

And Christianity would be a bad religion to adopt, considering some Americans as a whole are very anti christian in their behavior.
 

bradl

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I'm no Internet legal scholar, but I'm not following your thought in either paragraph 1 or 2.
Article 1, section 4 of the Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
If a state were to establish an 'official' religion, they are still bound by the Constitution to honor all other State's laws, including those that have no religion established. So while they can feel free to establish one, they can't say that theirs is the only one. So it renders their 'official' one moot.

Article 1, section 10:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
Bold for emphasis. Even if a state were to try to retroactively establish a religion, Article 1, section 10 prohibits it. Furthermore, any law that they pass to establish a religion comes under the scrutiny of Congress. Congress will not pass or condone such a law, per the 1st Amendment.

BL.
 

Gutwrench

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Thank you bradl. I guessed that was your understanding. I don't think your application of Art 4, Sec 1 is correct when it comes to your example.

But for discussion sake lets just assume you're correct. If it's so clear cut then why didn't Art 4, Sec 1 help same sex couples who were legally married in one state have their union legally recognized in a state where same sex marriages weren't recognized (like Texas)?

When it comes to Constitutional questions it's rarely clear cut and it takes some hubris to declare a Justice as "completely wrong."
 

bradl

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Thank you bradl. I guessed that was your understanding. I don't think your application of Art 4, Sec 1 is correct when it comes to your example.

But for discussion sake lets just assume you're correct. If it's so clear cut then why didn't Art 4, Sec 1 help same sex couples who were legally married in one state have their union legally recognized in a state where same sex marriages weren't recognized (like Texas)?

When it comes to Constitutional questions it's rarely clear cut and it takes some hubris to declare a Justice as "completely wrong."
That is a good question. My guess is that there was no precedent that set it, until the first state legalized same-sex marriage. Then that would be set, which all other states should have had to abide by.

BL.
 

ChrisA

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He's right. Like it or not.

For many years much of the US constitution did not apply to the states. It was only later after the 14th amendment in 1868 re-wrote the Due Process claus that the Bill of Rights applied to states

Most people don't remember that those were ONLY rights against the federal government for the first 100 or so years.

He might have some argument that the 14th amendments some how does not apply.

I'm pretty certain the Establishment clause did NOT apply to the states before 1868.
 

SLC Flyfishing

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If a state were to establish an 'official' religion, they are still bound by the Constitution to honor all other State's laws, including those that have no religion established. So while they can feel free to establish one, they can't say that theirs is the only one. So it renders their 'official' one moot.
I don't necessarily think that would be the way it would go down.

A state might declare an official religion but I very much doubt they would attempt to require all to adhere to it, or not allow the presence of other religions in said state.

Look at the Church of England as an example of how it might look were something like this to happen.
 

vrDrew

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Look at the Church of England as an example of how it might look were something like this to happen.
Uh, no.

Or, perhaps more accurately, which Church of England are you referring to?

The one that burned heretics at the stake - or the one that ordains lesbian ministers and sends money to African Dictators?

Because my money on an Alabama State Religion looks a lot more like Thomas Cranmer's than it does Rowan Williams'